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When do online threats of violence go too far? More to the point, is the test for evaluating a criminal threat whether a reasonable person would have regarded the communication as a threat, or do prosecutors also need to prove that the speaker intended to threaten someone?

On Monday, the Supreme Court agreed to review the conviction of Anthony Elonis for posting threats on Facebook against his ex-wife and others under 18 U.S.C. §875(c), which counts as a criminal offense anyone who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." Elonis testified that his communications were merely a form of artistic expression, that he was influenced by Eminem songs such as "Guilty Conscience," "Kill You," "Criminal," and "97 Bonnie and Clyde" where the rapper fantasizes about violence against his ex-wife.

[The decision below is here. Because Elonis' threats themselves are quite violent, I'll put them below the fold. Be warned.]

At trial, the judge instructed the jury as follows:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.
Elonis was sentenced to 44 months in prison, plus three years' supervised release. Elonis' appeal concerns whether this standard is enough, and whether (as some courts have held) the First Amendment demands that his subjective intent to threaten also be proven. (Or, as his attorneys put it in the cert petition, whether a person can be convicted "if he negligently misjudges how his words will be construed.") The conflict arises from the Court's splintered decision in Virginia v. Black a decade ago, which found cross-burning statutes to be constitutional if prosecutors can prove that the accused acted with the intent to intimidate.

Elonis' petition also raises the question of whether the subjective test was required because otherwise "statements by unpopular speakers are more likely to be deemed threatening than equivalent statements of popular (or powerful) ones, and thus are more likely to result in criminal liability," citing both Rep. Michael Grimm's threat to throw a reporter "off this f-----g balcony,” and the violent imagery in rap lyrics.

Amanda Marcotte, on the other hand, raised the question of whether this case will make "gaslighting" constitutionally protected:

Gaslighting is a common behavior used by abusers in order to control their victims. It usually takes the form of lying to her, insisting that her memories and perceptions of your behavior are not real, even though you know that they, in fact, are. Like constantly insulting someone and putting her down and then, when confronted with it, saying, “Oh, that wasn’t an insult. You’re just too sensitive.”

What’s interesting here is that gaslighting is now being used as a legal tactic. The posts sure do read as threats meant to frighten and intimidate—and a jury, when asked to consider them in that context agreed—but when confronted, he swears that they’re not, pulling this bullshit “rap lyrics” excuse out. (Some gaslighters try to see how far they can push the envelope, how obvious they can be with their bullshit and still get away with it, mainly to get that rush of power that you get being able to force people to submit to obvious lies. This seems like an example. Elonis is not a rapper, does not perform as one, and his wife says that he doesn’t even listen to rap music.)...

Let’s hope that kind of madness doesn’t overtake the Supreme Court, but I fear the combination of sexism and a sense that the internet isn’t “real” will probably make it hard to get five whole justices to see that trying to scare and control people from afar by threatening them on social networks is beyond the bounds of free speech, because it is a direct attack on their freedom of movement and association, by making them afraid to leave the house or go about their business.

The case will be argued this fall.

These are some of the threats Elonis posted on his Facebook page:

If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.
There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it's not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.
Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?

Try to enforce an Order

That was improperly granted in the first place Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement

Which you won't see a lick

Because you suck dog dick in front of children

* * *

And if worse comes to worse

I've got enough explosives to take care of the state police and the sheriff's department

That's it, I've had about enough

I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a kindergarten class

The only question is . . . which one?

And after the FBI visited him at his home, Elonis posted on Facebook:
You know your shit's ridiculous when you have the FBI knockin' at yo' door

Little Agent Lady stood so close

Took all the strength I had not to turn the bitch ghost

Pull my knife, flick my wrist, and slit her throat Leave her bleedin' from her jugular in the arms of her partner


So the next time you knock, you best be serving a warrant

And bring yo' SWAT and an explosives expert while you're at it

Cause little did y'all know, I was strapped wit' a bomb

Why do you think it took me so long to get dressed with no shoes on?

I was jus' waitin' for y'all to handcuff me and pat me down

Touch the detonator in my pocket and we're all goin'


Originally posted to Adam B on Tue Jun 17, 2014 at 09:29 AM PDT.

Also republished by Daily Kos.

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